Huon v. Breaking Media et al

Filing 35

MOTION by Defendants John Lerner, Breaking Media, David Lat, Breakingmedia.com, David Minkin, Abovethelaw.com, Elie Mystal to dismiss pursuant to rule 12(b)(6) (Mandell, Steven)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS – EASTERN DIVISION
MEANITH HUON,
Plaintiff,
v.
ABOVETHELAW.COM et al.,
Defendants.

)
)
)
)
) Case No. 11-cv-03054
)
) Judge Aspen
)
) Magistrate Judge Gilbert

ABOVE THE LAW DEFENDANTS’
MOTION TO DISMISS PURSUANT TO RULE 12(b)(6)
Defendants Breaking Media, LLC (erroneously sued as AboveTheLaw.com,
BreakingMedia.com, and Breaking Media), David Lat, Elie Mystal, John Lerner, and David
Minkin (the “ATL Defendants”) respectfully request that the Court dismiss Plaintiff’s claims
against them in the Second Amended Complaint, with prejudice.
1.

Plaintiff Meanith Huon (“Plaintiff”) alleges six claims against the ATL Defendants

based on a post on the website AboveTheLaw.com (the “Post”): (I) false-light invasion of
privacy, (II) intentional infliction of emotional distress, (III) defamation, (IV) defamation per se,
(V) cyberstalking, and (VI) civil conspiracy.
2.

The Court should dismiss Plaintiff’s defamation claims because the statements that

Plaintiff identifies either (a) are privileged as fair reports of judicial proceedings, (b) are nonactionable opinion and rhetorical hyperbole, (c) are allegations of defamation per quod that are not
supported by allegations of special damages, (d) would not tend to harm Plaintiff’s reputation,
(e) are not about Plaintiff, and/or (f) are not actually contained in the Post.
3.
same reasons.

The Court should dismiss Plaintiff’s claim for false-light invasion of privacy for the

4.

The Court should dismiss Plaintiff’s claim for intentional infliction of emotional

distress because the statements that Plaintiff alleges are subject to the fair report privilege and are
non-actionable opinion and rhetorical hyperbole, and because Plaintiff has not alleged extreme and
outrageous conduct.
5.

The Court should dismiss Plaintiff’s claim of cyberstalking under 720 ILCS

5/12-7.5 because that statute does not provide a private cause of action, the statute does not apply
to the Post, and Plaintiff’s claim is based on constitutionally-protected fair reports of
governmental proceedings.
6.

The Court should dismiss Plaintiff’s claim of conspiracy because he has no

underlying tort claim and has not adequately alleged a conspiracy.
7.

The ATL Defendants are submitting a memorandum of law in further support of

this motion.
WHEREFORE, the ATL Defendants respectfully request that the Court dismiss the claims
against them in Plaintiff’s Second Amended Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) with prejudice, and provide such further relief as is just.
Dated: September 21, 2011

Respectfully submitted,
BREAKING MEDIA, LLC (erroneously sued as
AboveTheLaw.com, BreakingMedia.com, and
Breaking Media), DAVID LAT, ELIE MYSTAL,
JOHN LERNER, AND DAVID MINKIN

Steven P. Mandell (ARDC #6183729)
Steven L. Baron (ARDC #6200868)
Sharon R. Albrecht (ARDC #6288927)
MANDELL MENKES LLC
One North Franklin, Suite 3600
Chicago, IL 60606
[phone]

By: /s/ Steven P. Mandell
One of their attorneys

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